Delhi District Court
Dr. Prem Jit Singh (Son Of Deceased vs Sh. S. Naib Singh on 27 January, 2012
Suit No.533/10
IN THE COURT OF MS. CHHAVI KAPOOR
CIVIL JUDGE-05:WEST DISTRICT
TIS HAZARI COURTS:DELHI
Suit No.533/10
Unique ID No.02401C0144802000
1. Dr. Prem Jit Singh (Son of Deceased Plaintiff Smt. Kartar Kaur)
S/o Late Dr. Onkar Singh
Klinik Baling,
Bangunan M.C.A.
Jalan Badishah,
09100 Baling, Kedah,
Malaysia.
2. Mr. Hardip Singh (Son of Deceased Plaintiff Smt. Kartar Kaur)
S/o Late Dr. Onkar Singh,
670/755, Charansnitwong Road,
SOI 68 BANGPLAD
Bangkok, Thailand.
3. Mrs. Rani Rajpal Kaur (Daughter of Deceased Plaintiff
W/o Jasinder Singh Ahluwalia Smt. Kartar Kaur)
H-2, New Delhi South Extension
Part-I, New Delhi-49.
INDIA
4. Mr. Surinder Pal Singh (Son of Deceased Plaintiff
S/o Late Dr. Onkar Singh, Smt. Kartar Kaur)
398/1, Mahachai Road, Samranrat,
Bangkok, Thailand.
5. Mrs. Sarabjit Ahluwalia (Daughter of Deceased Plaintiff
W/o Mr. G.P. Singh, Smt. Kartar Kaur)
3564, Gemini Way,
Sacramento, CA 95827,
U.S.A. ..............Plaintiffs
Versus
1. Sh. S. Naib Singh
S/o Late Sh. Kishan Singh,
R/o A-1/2, Rajouri Garden,
New Delhi.
2. Sh. S. Amrik Singh
S/o Late Sh. Kishan Singh,
Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.1 of 26
Suit No.533/10
R/o A-1/2, Rajouri Garden,
New Delhi.
3. Sh. S. Surjit Singh
S/o Late Sh. Kishan Singh
R/o A-1/2, Rajouri Garden,
New Delhi.
4. Mrs. Amarjeet Kaur
W/o Late Sh. Darshan Singh,
D/o Late Sh. Kishan Singh,
R/o A-1/2, Rajouri Garden,
New Delhi.
5. Mrs. Manjit Kaur
W/o Late Dr. Jasbit Singh,
D/o Late Sh. Kishan Singh,
R/o A-1/2, Rajouri Garden,
New Delhi. ............Defendants
6. Late Dr. Bhupinder Pal Singh
S/o Late Dr. Onkar Pal Singh
represented by Defendant No. 7,8 and 9
(Proforma Defendant)
7. Mrs. Swadesh Ahluwalia (LR of Bhupinder Pal Singh)
W/o Dr. Bhupinder Pal Singh,
P.O. Box 371, WAYMART PA 18472,
U.S.A. (Proforma Defendant)
8. Dr. Dicky Ahluwalia (LR of Bhupinder Pal Singh)
S/o Dr. Bhupinder Pal Singh,
P.O. Box 371, WAYMART PA 18472,
U.S.A. (Proforma Defendant)
9. Dr. Bobby Ahluwalia (LR of Bhupinder Pal Singh)
S/o Dr. Bhupinder Pal Singh,
P.O. Box 371, WAYMART PA 18472,
U.S.A. (Proforma Defendant)
Date of Institution : 01.12.2000
Date on which order has been reserved: 14.12.2011
Date of Decision : 27.01.2012
Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.2 of 26
Suit No.533/10
JUDGMENT
1 Plaintiff has filed a suit for Recovery of Possession and for Recovery of an amount of Rs.2,00,000/- from the Defendants. Facts in brief, necessary for disposal of the suit are as under:-
2 Plaintiff had inducted one Sh. Kishan Singh as a tenant in front portion of ground floor of property bearing no.A-1/2, Rajouri Garden, New Delhi, consisting of two drawing rooms, two bedrooms, two bathrooms, two kitchens and front lawn (hereinafter referred to as the suit property) by way of a Rent Deed dated 09.07.1985 at a monthly rent of Rs.4,000/-, exclusive of water and electricity charges. The tenancy was created for residential purposes and for a period of three years only. The term of the tenancy commenced w.e.f 15.07.1985. Sh. Kishan Singh expired on April 1974, leaving behind the Defendant nos.1 to 5 as his Legal Representatives, who thereafter became co-tenants in suit property by operation of law. It is claimed that the Plaintiff was not aware of the factum of death of Sh. Kishan Singh but had come to know of the same when she filed a suit bearing no.2936/95 in the Hon'ble High Court of Delhi on 29.11.1995 for Recovery of Possession and Arrears of Rent and Damages against him. The details of the Legal Representatives of Sh. Kishan Singh were supplied to the Plaintiff by the counsel for the Legal Representatives in the said suit.
3 Plaintiff claims that Sh. Kishan Singh was a habitual defaulter in payment of rent and had not paid rent w.e.f 01.04.1991. It was further claimed that even his Legal Representatives had been enjoying the suit property without paying rent/damages for its continued use and occupation. It is alleged that the Legal Representatives of Sh. Kishan Singh (Defendant nos.1 to 5) have carried out substantial additions and structural alterations in the suit property without the permission of the Plaintiff and due to this, their tenancy has been terminated by her by way Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.3 of 26 Suit No.533/10 of Legal Notice dated 22.08.2000. Vide this Notice, the tenancy of the Defendant nos.1 to 5 has been determined w.e.f 14.10.2000 and they have been asked upon to deliver vacant and peaceful possession of the suit property back to the Plaintiff. The Legal Representatives have further been called upon to pay arrears of rent w.e.f 15.04.1991 till 14.10.2000 and cautioned against payment of Damages/Mesne Profits for illegal and unauthorized occupation therein @ Rs.20,000/- p.m w.e.f 15.10.2000 till the date of delivery of possession of the suit property back to the Plaintiff. The Defendants have, however, failed to handover the possession of the suit property back to the Plaintiff and therefore, she has filed the present suit.
4 All the Defendants were served with the summons of the suit but only the Defendant nos.2 and 3 chose to contest the claim of the Plaintiff by filing a Written Statement. A Preliminary Objection was raised in the Written Statement, thereby stating that the suit for Possession was barred by Article 67 of the Limitation Act, 1963. It was claimed that the cause of action for recovering possession and arrears of rent had arisen for the first time on 15.07.1988 i.e after expiry of the registered Lease Deed dated 09.07.1985 and thus, it was claimed that the present suit, filed on 02.12.2000 was beyond the limitation period of twelve years. In the alternative, another ground of objection was raised, stating inter-alia that the Plaintiff had lost her right to claim possession against the Legal Representatives of Sh. Kishan Singh after withdrawing the first suit bearing no.2936/96 from the Hon'ble High Court of Delhi. In addition to these grounds, it was averred that Sh. Kishan Singh and his Legal Representatives (Defendant Nos. 1 to 5) had become unauthorized occupants of the suit property after termination of the initial agreement dated 09.07.1985. In this respect, it was further submitted that the tenancy of Sh. Kishan Singh or his Legal Representatives had never been extended by the Plaintiff and it was claimed that this intention of the Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.4 of 26 Suit No.533/10 Plaintiff was very much apparent from a previous legal notice of the Plaintiff dated 28.03.1993. It was claimed that Notice clearly showed that the Plaintiff had, at no stage accepted the Defendant Nos. 1 to 5 or their father as lawful occupants after expiry of the registered lease deed. Service of the legal notice dated 22.08.2000 was also denied and it was claimed that since no tenancy agreement had subsisted between the parties after 15.07.1988, the question of termination of any subsequent tenancy by way of any notice dated 22.08.2000 could not arise. However, the Defendants admitted that their father had paid money to the Plaintiff till March 1991 but claimed the same to be damages for use and occupation of the suit property from the date of expiry of the lease. The Defendants denied causing any substantial damage to the suit property or carrying out any unauthorized additions and alternations in the same at any point of time. The Defendants further denied that they were liable to pay an amount of Rs.2,00,000/- as Arrears of Rent/Damages/Mesne profits to the Plaintiff. On the basis of the facts and the grounds stated above, Defendants prayed for dismissal of the suit.
5 A Replication was filed by the Plaintiff by which facts stated in the Written Statement were denied and those stated in the plaint were reiterated and reaffirmed.
6 On the basis of pleadings of the parties, following Issues were framed by my Ld. Predecessor for determination in the suit on 15.10.2001.
Issue No.1 Whether the suit of the Plaintiff is barred by limitation?
OPP Issue No.2 Whether the suit of the Plaintiff is not maintainable in view of P.O. No.2? OPD Issue No.3 Whether there is no cause of action for filing the present suit?
OPD Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.5 of 26 Suit No.533/10 Issue No.4 Whether the Plaintiff is entitled to Possession of the suit property, as prayed for? OPP Issue No.5 Whether the Plaintiff is entitled to Damages, as claimed?
OPP Issue No.6 Relief.
7 On behalf of the Plaintiff, Sh. Hardip Singh (son of Smt. Kartar Kaur; Plaintiff no.2) was examined as PW-1 in support of the case. He proved the original general power of attorney, executed in his favour; Ex. PW 1/1, sale deed of the suit property; Ex. PW 1/ 2(OSR), original rent agreement dated 09.07.1985; Ex. PW 1/3 (also PW 1/D1), certified copy of the plaint filed in the High Court; Ex. PW 1/D2, Certified copy of order of the High Court dated 26.10.99; Ex. PW 1/ 4, site plan of the suit property; Ex. PW 1/5, carbon copy of the legal notice issued to the LR's of Sh. Kishan Singh; Ex. PW 1/6, original post receipts; Ex. PW 1/7 to Ex. PW 1/12, original UPC; Ex. PW 1/13, AD cards; Ex. PW 1/14 to Ex. PW 1/17, envelope of letter addressed to Smt. Manjeet Kaur; Ex. PW 1/18, Certified copies of proceeding sheets in Suit No.2936/95; Ex. PW-1/21, Certified copy of Notice dated 28.03.1993; Ex. PW-1/24, Copy of AD card and registry date; Ex. PW-1/22 and Ex. PW-1/23.
8 Apart from PW-1, Sh. B.N. Nanodia, clerk cum cashier from the Punjab National Bank was examined as PW-2. PW-2 relied upon statement of account of the Plaintiff; Ex. PW 2/2 and the account opening form which was Ex. PW 2/3.
9 Smt. Divya Prakash, Draftsman, who prepared the site plan of the suit property was produced as PW-3. This witness proved the site plan of the suit property; Ex.PW1/5.
10 The Defendants examined Sh. Amrik Singh (son of late Sh.
Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.6 of 26 Suit No.533/10 Kishan Singh; Defendant no.2) as DW-1 and Sh. Darshan Singh as DW-2 in support of their case.
11 I have heard Counsel for Plaintiff Nos.1, 2, 4 , 5 and Plaintiff No.3 and the Counsel for Defendant Nos. 2 and 3 at length and have given my thoughtful consideration to the pleas put forth by them. My Issue- wise findings are as follows.
Issue No.1, 3, 4 and 5Issue No.1, 3, 4 and 5 can be disposed off by way of a common finding. Therefore, the Issues are being taken up together. 12 This Suit for Possession has been filed by the Plaintiff, on the ground that the tenancy of the Defendants has been terminated by way of a Legal Notice dated 22.08.2000 and that they are liable to handover the vacant and peaceful possession of the suit property back to her forthwith. A claim for arrears of rent and Damages/Mesne Profits has also been made by way of this suit. The Defendants have resisted the claim of Possession on the ground that the suit is barred by Article 67 of the Limitations Act, 1963. Onus to prove that the Plaintiff is entitled to Recovery of Possession of the suit property; and that the suit is not barred by limitation was placed upon her shoulders. I shall record my opinion on the aforesaid in the next following paragraphs in order to determine as to whether the onus has been discharged or not.
13 The suit for Possession was filed by the owner and landlord of the suit property namely Smt. Kartar Kaur but the plaint was signed and verified on her behalf by her son; Sh. Hardeep Singh (Plaintiff no.2). The Plaintiff no.2, who deposed as PW-1 in support of the claim of the Plaintiff, proved on record a General Power of Attorney executed in his favour by his mother (Ex. PW-1/1). The attorney authorized him to execute, sign, present and verify any document in the name of Smt. Kartar Kaur for the Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.7 of 26 Suit No.533/10 purpose of sale/transfer or eviction of the suit property. The attorney further authorized him to file an Eviction Petition against tenants and to defend all actions or claims or any litigation in that regard. The residual Clause no.18 of the Power of Attorney also authorized PW-1 "generally" to do all acts, deeds or things in the name and on behalf of Smt. Kartar Kaur in respect of the suit property as her attorney. No objection to the legality of the document Ex. PW-1/1 was raised by the opposite party. However, their only contention was that a Power of Attorney holder could not depose on behalf of the person authorizing him in respect of the matters of which only the Principal could have personal knowledge and was liable to be cross-examined for. Ld. Counsel for the Defendant relied upon a Judgment of the Hon'ble Supreme Court of India titled "Janki Vashdeo Bhojwani and Anr. Vs Indusind Bank Ltd. & Ors.; (2005) 2 SCC 217, in support of the above said objection. The authority of a Power of Attorney Holder to depose on behalf of the principal granting him attorney was quite exhaustively discussed and dealt with in the said Judgment. Paragraph 13 of the Judgment is noteworthy and was cited by the Defendants in support of their Argument. Paragraph no.13 of the Judgment referred to above is as under:
"In our view the word "acts"
employed in Order 3 R. 1 and 2 CPC confines only to in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.8 of 26 Suit No.533/10 depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."
14 There is no doubt that in a Civil dispute, the conduct of parties is material. A party filing a suit should normally not be allowed to shy away from gracing the witness box. If he does so, an adverse inference is bound to be drawn against him. A similar view has already been propounded in the case of "Vidyadhar Vs Manik Rao"; (1999) 3 SCC 573 wherein the Hon'ble Supreme Court of India observed the following:
"Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross- examined by the other side, a presumption would arise that the case set up by him is not correct..."
15 Ld. Counsel for the Defendant further argued that it has been time and again held that if the Plaintiff is unable to appear in the Court, a commission for recording his statement may be issued under the relevant provisions of CPC but a Power of Attorney cannot be allowed to appear as a witness on behalf of the party in the capacity of that party only.
16 With a view to counter the aforementioned objection of the Defendants, Ld. Counsel for the Plaintiff has relied upon a Judgment of the Supreme Court of India titled "Man Kaur (Dead) by Legal Representatives Vs Hartar Singh Sangha"; VII (2010) SLT 144 in which Hon'ble Justice R. V. Ravindaran and Hon'ble Justice Aftab Alam have dealt with a number of case laws including the case of "Janki Vashdeo Bhojwani and Anr. Vs Indusind Bank Ltd. & Ors.", which was relied Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.9 of 26 Suit No.533/10 upon by the Defendant. The Hon'ble bench had summarized the nature and extent of the authority of a Power of Attorney Holder in paragraph 12 of its Judgment. The sub-paragraph No. (g) of paragraph no.12 has been emphasized by the Plaintiff in order to assail upon the objections of the Defendant. The sub- paragraph (g) of paragraph 12 is as follows:
"Where the law requires or contemplated the Plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or 'conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
17 Needless to state, the above reproduced observations, by Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.10 of 26 Suit No.533/10 virtue of being a part of a later Judgment of the Hon'ble Supreme Court of India shall prevail over the observations made by the Hon'ble Supreme Court, in the Judgment of Janki Vashdeo Bhojwani and Anr.
18 No questions suggesting that the contents of the plaint were not in the personal knowledge of PW-1 were addressed to him. Infact, PW-1 had deposed that he was fully conversant with the facts of the case as he was dealing with it for a long time. PW-1 had stated in his cross- examination that he was the attorney of his mother since June 1996 i.e. prior to execution of General Power of Attorney Ex. PW-1/1. PW-1 had also deposed that after the filing of the previous suit for Possession in the Hon'ble High Court of Delhi, his mother had gone back to Bangkok. PW-1 had also stated in his cross-examination conducted on 13.12.2001 that his mother was present in India towards the end of 1990 and thereafter, she never came back to India. He also deposed that a lawyer was working on her instructions in the beginning but later on she had authorized him by means of the Power of Attorney to act in respect of the matters of the suit property.
19 PW-1 had stated in his cross-examination conducted on 13.12.2001 that he had visited the suit property in early 1993 and had come to know about additions and alterations made by the Defendants therein. No suggestion was given to PW-1 in rebuttal on the aspect of the above said deposition by the counsel for the Defendants. Thereafter, PW-1 went on to state that the site plan of the property was got prepared by him before institution of this suit by taking an Architect to the site. A site plan was filed by the Plaintiff in this regard. The draftsman who had gone to the site and prepared the plan was examined as PW-3 but the Defendants chose to abstain themselves from cross-examining this witness. By implication, the Defendants admitted the plan to be correct and thus, the same was proved as Ex. PW-1/5. PW-1 had stated in his Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.11 of 26 Suit No.533/10 cross-examination that he had accompanied the Architect to the site for the purpose of preparing the plan. He further stated that he had entered the building and had sought permission of a lady sitting there for the job. No question in cross-examination, suggesting that PW-1 had not accompanied the Architect to the site was put to the witness. In a Legal Notice dated 28.03.1993, issued by the landlord; Smt. Kartar Kaur to the tenant; Sh. Kishan Singh, the landlord had claimed that her son (PW-1) had recently visited the suit property and had found that the addressee had carried out structural changes and other alterations in the premises. This Notice has been relied upon by the Defendants in their pleadings too. The testimony of PW-1 and the contents of this Notice go on to show that PW-1 was dealing with the matters relating to the suit property from before hand. There is nothing on record to show otherwise. The Defendants have thus, failed to show that PW-1 was not authorized to depose on behalf of the Plaintiff in respect of the facts of the case. Even the Defendants have failed to prove that PW-1 was not acquainted with facts of the matter in the dispute and thus, was incompetent to depose as an attorney of Plaintiff.
20 Apart from the Issue of Power of Attorney and the authority of the Holder to depose in view thereof, certain other Issues were raised on the side of the Defendants. However, the main Issue revolved around the question of limitation and bar of Article 67 of the Limitation Act, 1963. It was the Defendant's argument that they had not been occupying the property as tenants but were merely residing in the same as unauthorized occupants for the last more than twelve years. In order to deal with this contention, I shall discuss briefly the facts and the evidence led on record by both the parties.
21 Smt. Kartar Kaur had initially entered into a registered Rent Agreement dated 09.07.1985 for a period of three years on a monthly rent of Rs.4,000/- p.m with Sh. Kishan Singh. The tenancy commenced w.e.f Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.12 of 26 Suit No.533/10 15.07.1985. The tenancy agreement expired by efflux of time on 15.07.1988 but the Legal Representatives of Sh. Kishan Singh have continued to remain in possession of the suit property since then. These facts are not denied by either of the parties.
22 On 28.03.1993 Smt. Kartar Kaur had issued a Legal Notice, through her counsel to Sh. Kishan Singh, purportedly terminating his tenancy w.e.f. the midnight of 14.05.1993. In the said Notice, Smt. Kartar Kaur had stated that Sh. Kishan Singh had carried out structural changes and additions and alterations in the suit property. It was further stated that Sh. Kishan Singh had been most irregular in payment of rent and had lastly paid rent on 27.03.1991 by depositing an amount of Rs.24,000/- being six months rent. The addressee was further communicated that the landlord was no longer interested in extending the lease any further and thus, had terminated the same by way of the Legal Notice. By the same correspondence, the landlord had called upon the addressee to pay the entire arrears of rent and handover the possession of the property on or before 14.05.1993, it being the last day of tenancy month. The intention of the landlord (Smt. Kartar Kaur), as reflected in the Notice dated 28.03.1993 has been the main bone of contention and is an important piece of evidence. Both parties have relied upon this Notice (proved as Ex. PW-1/24) and the contents thereof. Therefore, the Legal Notice dated 28.03.1993 is being reproduced below in verbatim:
"Dated: 28.03.1993 Sh. Kishan Singh son of Sh. Ram Pratap Singh, A-1/2, Rajouri Garden, New Delhi.
Dear Sir, For and on behalf of and under instructions from our client Smt. Kartar Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.13 of 26 Suit No.533/10 Kaur wife of Sh. Onkar Singh, C/o H-2, South Extn-II, New Delhi, we serve upon you the following notice:
1. That vide rent deed dated 09.07.1985 our client who is the owner/landlady of the premises bearing No.A-1/2, Rajouri Garden, New Delhi, let out front portion of ground floor of the said premises comprising of two drawing rooms, two bath rooms, two bed rooms, two kitchens and front lawn at a monthly rent of Rs.4,000/- exclusive of water and electricity charges for a period of three years only.
2. That the tenancy of the said premises commenced from 15.07.1985 for a period of three years thus the tenancy month starts from 15th day of each English Calender month and expires on the 14th day of the following month.
3. That in the said rent deed it was clearly stipulated that you will not carry out any additions/alterations in the said property without the written consent of our client.
4. That the son of our client Sh. Hardeep Singh recently visited the tenanted premises and found that you have been carried out structural changes and additions/alterations and the two side varandha in the said premises have now been converted into full fledged rooms with pucca constructed walls and windows Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.14 of 26 Suit No.533/10 affixed and you have carried out other extensive structural changes in the tenanted premises without the consent and against the wishes of our client.
5. That you have also been irregular in the payment of rent and last paid the rent on 27.03.1991 by depositing Rs.24,000/- being six months rent.
6. That even otherwise, the tenanted premises were let out to you for a period of three years only, therefore, our client does not want to extend the lease further and thus determines your tenancy.
7. That due to the above, our client no more wants to keep you as her tenant and terminates your tenancy w.e.f mid night of 14th day of May, 1993 being the last day of your tenancy month or on the date you think your tenancy month expires.
You are hereby required by this notice to pay the entire arrears of rent within the statutory period and you are further required to handover vacant and peaceful possession of the tenanted premised on or before 14.05.1993 being the last day of your tenancy month or on the day you think your tenancy month expires failing which our client will be constrained to institute the ejectment proceedings and also for the recovery of rent against you at your risk and cost.
Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.15 of 26 Suit No.533/10 Yours faithfully, (S.R. Yadav & Co.) Advocates"
23 It is a matter of record that a suit was filed by the Plaintiff in the Hon'ble High Court of Delhi (Suit No.2936/95, filed on 29.11.1995) for eviction of the tenant (Sh. Kishan Singh) from the suit property and for Recovery of rent and Damages/Mesne Profits after issuance of the above said Legal Notice dated 28.03.1993. However, the suit was withdrawn at a later stage when it was revealed that Sh. Kishan Singh had already expired on 27.04.1994 i.e. well before the filing of the suit in High Court. Thereafter, the Plaintiff withdrew the suit with liberty to file a fresh suit against proper persons. The orders granting this liberty dated 26.10.1999 are Ex. PW-1/21 and are reproduced below:
"26.10.1999 Present: Mr. S.R. Yadav for the Plaintiff.
Mr. Manbir Singh for proposed Legal Representatives.
Suit 2936/95 & IAs 12898/96, 475-76/98 Learned counsel for the plaintiff prays that he be permitted to withdraw the present suit as the present suit was filed after the death of the Defendant, as is manifest from the reply filed by Legal Representatives of the Defendant.
In view of the above, the present suit is hereby dismissed as withdrawn with liberty to the Petitioner to file fresh suit against proper persons.
All pending interim Applications Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.16 of 26 Suit No.533/10 are disposed of accordingly.
-Sd/-
October 26, 1999 Mohd. Shamim, J." 24 Thereafter, the Plaintiff issued a Legal Notice dated
22.08.2000, upon the Legal Representatives of deceased Kishan Singh vide which it was claimed that the Legal Representatives had become co- tenants in the suit property after the expiry of Sh. Kishan Singh and because of grounds mentioned in the Notice, the landlord was no longer interested in retaining them as tenants. By virtue of the aforesaid Notice, the tenancy of the Legal Representatives was terminated and they were called upon to vacate the suit property on or before 14.10.2000. They were also called upon to pay the entire arrears of rent up till the date of expiry of their lease and further cautioned against payment of damages @ Rs.20,000/- p.m in case of their default to vacate the suit property in time. As the suit property was not handed over back to the Plaintiff, she filed the present suit for Possession and Recovery on 01.12.2000.
25 The Argument propounded by the Defendants in order to assail upon the claim of the Plaintiff was that the agreement of lease dated 09.07.1985 had come to an end by efflux of time (U/S. 111 of Transfer of Property Act, 1882) after a period of three years therefrom and hence, it was argued that the possession of the Defendants had become unlawful therein. It was further argued that the cause of action for Recovery of Possession and Recovery of Rent had arisen on 15.07.1988 and therefore, it was claimed that the suit of the Plaintiff, having been filed on 02.12.2000 was barred by period of limitation of twelve years. Plaintiff opposed these grounds by claiming that the tenancy of Sh. Kishan Singh was continued even after its expiry on 14.07.1988 as he became a tenant holding over and even continued to pay rent till March 1991. It was argued that Sh. Kishan Singh and his Legal Representatives were occupying the Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.17 of 26 Suit No.533/10 suit property as tenants holding over until the termination of their tenancy by way of Legal Notice dated 22.08.2000.
26 At the outset, it is pertinent to point out that the present suit came to be filed on 01.12.2000 and not on 02.12.2000, which fact has been alleged by the Defendants in their Written Statement. The plaint bears the stamp of the Ld. District Judge, Delhi dated 01.12.2000. The suit was thereafter, transferred to the Court of Sh. Rajneesh Bhatnagar, Ld. ADJ, Delhi who received it on 04.12.2000.
27 It is not denied that the Tenancy Agreement was covered by provisions of the Delhi Rent Control Act, 1958 in the year 1988. Counsel for the Plaintiff argued that the right of re-entry of the Lessor under the Transfer of Property Act, 1882 was fettered by provisions of Delhi Rent Control Act, 1958 during the relevant period. He relied upon the following Judgment reported as "Rajinder Singh (dead) & Anr. Vs Dalip Chand & Ors.; (1995) 1 Supreme Court 759" wherein the following was observed:
"It is a settled law that the Rent Control Act is a code in itself. It is equally well- settled that to the extent the Rent Control Act governs, the provision of Transfer of Property Act will not apply".
28 Certain other Judgments reiterating the above said observation were filed on record by the Plaintiff in support of her Argument. The Defendants did not argue against this fact nor did they file any Judgment in order to counter the aforementioned Argument. 29 It is apparent that the contractual lease agreement expired on 14.07.1988 but the relationship of landlord and tenant continued to exist between the parties for the purposes of Delhi Rent Control Act. It is only on 01.12.1988 that, the Delhi Rent Control Act was amended and the controversy came under the purview of provisions of the Transfer of Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.18 of 26 Suit No.533/10 Property Act. Needless to state, the limitation for filing a suit for Possession under the provisions of Transfer of Property Act would commence from 01.12.1988 and not from 15.07.1988. 30 It was the Plaintiff's main Argument that after the termination of tenancy agreement dated 15.07.1985, Sh. Kishan Singh and his Legal Representatives had been enjoying the suit property as tenants holding over. Per contra, the Defendants maintained that they had become trespassers to the property after 15.07.1988 and were occupying the same by virtue of being tenants by sufferance. In a Judgment reported as "MEC INDIA PVT. LTD. VS LT. COL. INDER MAIRA AND ORS."; 80 (1999) Delhi Law Times 679, Hon'ble Justice C.K. Mahajan, has held that a lessee who continues beyond the expiry of the term by efflux of time, could either be there merely at sufferance or he could be holding over. However, it was further held that there is a presumption in favour of the continuity of tenancy and against the possession of the Defendant becoming adverse.
31 The legal status of a tenant remaining in possession of the property after determination of the lease , was also explained by Justice Bhagwati in Judgment cited as Nanalal Girdharlal Vs Gulamnabi Jamalbhai Motorwala AIR 1993 Gujrat 131. Speaking for the full bench, he had held the following:-
"But we do not think that a tenant in possession of the property after determination of the lease can be equated to a trespasser. The law in India on this is different from that in England. ... .... When a tenant remains in possession of the property after determination of the lease in India, he undoubtedly becomes a tenant at sufferance but if the landlord accepts rent from him or otherwise assents to his continuing in possession, the tenancy is, in the absence of an Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.19 of 26 Suit No.533/10 agreement to the contrary, renewed from year-to- year or month-to-month according the purpose for which the property is leased vide Section 116 of the Transfer of Property Act. Even if the landlord does not assent to the tenant continuing in possession of the property and the tenancy is not renewed as provided in Section 116 of the Transfer of Property Act, the tenant does not become a trespasser. The tenant has juridical possession of the property and no one can deprive him of such juridical possession except in due course of law."
32 The difference between a tenant holding over and a tenant by sufferance has been discussed in detail in a Judgment titled as "INMACS Ltd. Vs Prema Sinha and Ors."; 153 (2008) Delhi Law Times 311 (DB). This Judgment has been relied upon by both parties. Para 19 of the Judgment discusses the distinction between the two and is cited below:-
"A person who enters upon the property of another without authority of law is a trespasser. It could be argued that the very next moment after the period of lease stands expired the act of entering upon property by the tenant is an act of trespass. But law says no. A lessee who continues in possession after expiry of the lease, without the consent of the lessor or without any agreement between the parties or in disagreement with the lessor, is treated in law as a tenant by sufferance. But where the lessor consents to the continued possession of lessee on the same terms and conditions as per the Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.20 of 26 Suit No.533/10 original lease a tenancy by holding over comes into operation."
33 Apart from observing the above said, the Hon'ble Bench had gone a step further and held that in order to create a tenancy by holding over, a bilateral contract between the lessor and the lessee was a must. It was also held that the bilateral contract could be express or implied and would be presumed by offer and acceptance of rent between the parties. However, it was cautioned that this conduct would not amount to conclusive proof of assent to the subsequent tenancy and could be easily rebutted by other evidence.
34 The focal point of Argument of the Plaintiff side was that the lessee had continued to pay rent even after expiry of the initial tenancy agreement dated 09.07.1985, which was accepted by the lessor and was duly paid up till March 1991. It was submitted that a new tenancy, though on the old terms and conditions had therefore, come into existence, which finally got determined by service of the legal notice to quit dated 22.08.2000.
35 A plethora of Judgments were filed on both sides in order to substantiate their respective pleas. I have gone through the Judgments cited by both sides and on the basis of the pronouncements given therein and evidence led on record, I have come to an opinion that the Defendants had been occupying the property by virtue of being tenants holding over. Suffice to say, the Defendants failed to discharge the burden which had shifted upon their shoulders. The reasons for my opinion are as follows:
36 The Hon'ble Supreme Court of India has time and again held that in case a Lessee remains in possession of the tenanted premises after the determination of the lease, the said conduct is indicative, in Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.21 of 26 Suit No.533/10 ordinary circumstances, of his desire to continue as a tenant under his lessor and implies a tacit offer to take a new tenancy from the expiration of the old one on the same terms as existed before. In such cases, if the lessee tenders rent and the lessor accepts it, their conduct raises the implication of an agreement between the parties to create a new tenancy. This view has been propounded in the Judgment reported as "Bhawanji Lakhamashi Vs Himatlal Jamnadas Dani"; AIR 1972 SC 819 .
37 As has already been discussed in the preceding paragraphs, the abovesaid presumption is not conclusive and is rebuttable by bringing on record evidence which proves the contrary. The Defendants failed to bring on record any such evidence to show that the Plaintiff (lessor) had allowed them to reside in the suit property without any right or interest. On the contrary, by way of evidence led by the Plaintiff, it was proved that the amounts (paid up till March, 1991) were infact paid as rent and not as damages. In order to arrive at this conclusion, it was essential for me to study and gauge the intention of the lessor and the nature of her relationship with the lessee since the expiry of the initial lease agreement dated 09.07.1985.
38 The Notice dated 28.03.1993 has already been reproduced in the paragraph no. 22 of this Issue. Clause no. 5 and 6 of the Notice dated 28.03.1993 signifies that the Plaintiff had infact treated Sh. Kishan Singh as her tenant up till 14.05.1993. She had demanded arrears of Rent w.e.f April 1991 by stating that the rent up till March 1991 stood already paid. By way of the Notice, Plaintiff had terminated the tenancy of Sh. Kishan Singh by treating it as a Notice U/S. 106 of the Transfer of Property Act, 1882. Paragraph no.6 of the Notice dated 28.03.1993 contained two remarkable words; "extending "and "further". Preceding these words, the Plaintiff had stated that the tenancy was otherwise for a period of 3 years but the landlord was no longer interested in "extending" the lease any Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.22 of 26 Suit No.533/10 "further". The expression of the landlord was unequivocal and their can be no two ways about interpreting it. In the same breath, I want to substantiate the Argument of the Plaintiff by clarifying the intention enshrined in paragraph no. 5 of this Notice. The words used were "lastly paid rent on 27.03.1991". Nothing more was required to prove that the Plaintiff treated Sh. Kishan Singh as her tenant in the year 1991. It is implicit that after termination of the initial tenancy agreement dated 09.07.1985, the Plaintiff assumed that a New Agreement of Tenancy, though on the old terms and extending from month to month had come into existence.
39 DW-1 had also admitted in his cross examination that the Plaintiff had earlier filed a suit for Possession in the Hon'ble High Court of Delhi for Recovery of Arrears of Rent from 01.04.1991. The institution of the suit for Recovery of Arrears of Rent also signifies the intention of the Plaintiff in recognizing the continuance of tenancy.
40 It is a matter of record that the notice dated 28.03.1993 had turned futile as it was later on revealed that Sh. Kishan Singh had expired on 27.04.1994. On coming to know of his death,the Plaintiff had again issued a letter to his Legal Representatives, thereby treating them as co- tenants and terminating their tenancy by way of Legal Notice dated 22.08.2000. Though, the Defendants denied the service of this Legal Notice dated 22.08.2000 in Argument, DW-1 (Defendant no.2) had very categorically admitted in his cross examination conducted on 06.09.2006 that the Plaintiff might have issued them the Notice dated 22.08.2000 after withdrawal of the High Court case. Even otherwise, the service of the Legal Notice dated 28.03.2000 was proved as AD cards and postal receipts in proof of service were filed in original and exhibited in Plaintiff's evidence. The Notice contained serious allegations against the Defendants and the fact that the Defendants did not rebut the same, Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.23 of 26 Suit No.533/10 raised an adverse inference against them.
41 Defendants admitted to having paid money up till March 1991 but maintained that it was towards damages for unauthorized use and occupation of the suit property. Be that as it may, the burden of proving that the amounts paid to the Plaintiff (lessor) up till March 1991 were paid as damages and not as rent shifted towards the Defendants. However, when Defendant no.1 appeared in the witness box as DW-1, he was hardly able to stick to his original stand. He was initially not able to determine whether the amount was paid as rent or as damages but had later on said that it was not towards rent. A demand for arrears of rent w.e.f Oct. 1992 (legally recoverable) was made in the suit in Hon'ble High Court of Delhi on the same ground that the Defendant had not paid rent after March 1991. Damages/Mesne profits were claimed in the suit from 15.05.1993 i.e. after the termination of the tenancy by Legal Notice dated 28.03.1993. A combined reading of all the transpired facts clearly point towards the clear intention of the Plaintiff towards existence of a TENANCY between the parties, even after the expiry of the initial Lease Agreement dated 09.07.1985. The amounts tendered by Sh. Kishan Singh up till March 1991 were towards arrears of rent as he had become a tenant holding over. The tenancy of Sh. Kishan Singh had later on devolved upon his Legal Representatives, which now stands terminated by way of Legal Notice dated 22.8.2000. Plaintiff has succeeded in proving that the possession of the Defendants in the suit property has become unauthorized w.e.f 15.10.2000. The claim has been filed within the period of limitation and therefore, the Defendants are liable to handover the suit property back to the Plaintiff forthwith.
42 The Relief of Arrears of Rent/Damages has already been satisfied vide orders of my Ld. Predecessor dated 13.03.2002. The Defendants have deposited arrears of Rent/Damages @ Rs.4,000/- p.m Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.24 of 26 Suit No.533/10 for the period w.e.f 15.11.1997 till 13.03.2002. As per report of Naib Nazir, the Defendants have been regularly depositing rent/damages @ Rs. 4,000/- p.m since that time and the rent stands deposited up till date. The Plaintiff no.2 has been withdrawing this rent with the consent of all Plaintiffs from the Court. Plaintiff has failed to lead any evidence or establish that it is entitled to Damages/Mesne Profits @ Rs.20,000/- p.m for illegal and unauthorized use and occupation of the suit property since 15.10.2000. Since the last admitted rate of rent stands at Rs.4,000/- p.m, Plaintiff is held entitled to Damages at the said rate. Rent/Damages @ Rs. 4,000/- p.m stand deposited till date. Therefore, the claim of the Plaintiff for Arrears of Rent/Damages stands satisfied.
Issues are accordingly decided in favour of the Plaintiff and against the Defendants.
Issue nos 2 43 Defendants had argued that Plaintiff had lost her right to file the second suit for Possession after having withdrawn the first suit bearing no.2936/96 from the Hon'ble High Court of Delhi. It was also claimed that the cause of action for regaining possession stood exhausted on the unconditional withdrawal of the suit from the Hon'ble High Court of Delhi. This ground was raised in the Preliminary Objection no.2 of the Written Statement filed by the Defendants. The order of the Hon'ble High Court of Delhi dated 26.10.1999 vide which the suit was withdrawn by the Plaintiff have already been reproduced in paragraph no.23 of my findings on the Issue Nos.1, 3, 4 and 5. It is clear that the Plaintiff was granted conditional permission to withdraw the suit with liberty to file the same against proper persons. It is not denied that Sh. Kishan Singh, against whom the suit for Possession had been filed in the Hon'ble High Court of Delhi had already expired before the institution of the suit. The suit was filed against a dead person and, therefore was non-est in the eyes of law. The Legal Representatives of Sh Kishan Singh could not have been impleaded in Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.25 of 26 Suit No.533/10 the suit as the same would have amounted to an illegality. Therefore, the withdrawal of the suit by the Plaintiff was proper and the action did not result in exhaustion of the cause of action for recovery of possession against the Legal Representatives. Even otherwise, the Hon'ble High Court had granted the Plaintiff liberty to file the suit against proper person, which order has not been challenged by the Legal Representatives till date. The Preliminary Objection No.2 is merit less and, therefore, the Issue is decided against the Defendants.
Relief 44 In view of my findings on the Issues framed in the suit, it is held that the Plaintiff is entitled to the Decree of Possession as prayed for in the plaint. Defendants are hereby ordered to handover vacant and peaceful possession of the suit property back to the Plaintiff. Costs of the suit are awarded to the Plaintiff. Suit of the Plaintiff is accordingly, Decreed. Let a Decree Sheet be prepared. File be consigned to Record Room after due compliance.
Announced in the open court, Today on 27th January, 2012.
(CHHAVI KAPOOR) CIVIL JUDGE(W)-05 THC, Delhi/27.01.2012 Premjit Singh & Ors. Vs S. Naib Singh & Ors. Page No.26 of 26